Gordon v. Heller

• Decision Date: 08 April 1935
• Docket Number: No. 99.,99.
• Citation: 260 N.W. 156,271 Mich. 240
• Parties: GORDON, Secretary of Banking, v. HELLER.
• Court: Michigan Supreme Court

271 Mich. 240

260 N.W. 156

GORDON, Secretary of Banking,

v.HELLER.

No. 99.

Supreme Court of Michigan.

April 8, 1935.

Action by William D. Gordon, Secretary of Banking of the Commonwealth of Pennsylvania, against Bernard Heller. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Washtenaw County; George W. Sample, Judge.

Argued before the Entire Bench.

Hooper & Hooper, of Ann Arbor, for appellant.

Burke & Burke, of Ann Arbor, for appellee.

WIEST, Justice.

This is an action at law upon a judgment rendered against defendant in the court of common pleas for the county of Philadelphia, state of Pennsylvania, on April 19, 1933. The trial judge held the foreign judgment void, because the statute of limitations of Pennsylvania had run against the obligation at the time of judgment.

We gather from the record that defendant executed a note, secured by mortgage upon his property in Pennsylvania, and, at the same time, he gave a bond and warrant of attorney. The bond and warrant set forth: ‘Whereas, I, Bernard Heller, of the city and county of Philadelphia, Pennsylvania, in and by a certain obligation, bearing even date herewith, do stand firmly bound unto Alfred Yentis of the same place in the sum of ten thousand ($10,000.00) dollars lawful money of the United States of America, conditioned to keep and maintain at all times, until the full discharge of the said obligation, a policy or policies of insurance, in good and approved company or companies duly assigned as collateral to the obligee or his executors, administrators or assigns, to an amount not less than five thousand ($5,000.00) dollars, upon the buildings on the premises mortgaged by the mortgage securing the said obligation, and conditioned for the payment of the just sum of five thousand ($5,000.00) dollars at the expiration of three (3) years from the date thereof, together with interest payable half yearly at the rate of six (6%) per cent per annum and for the production to the obligee, his executors, administrators or assigns, on or before the first day of October of each and every year, of receipts for all taxes and water rates of the current year assessed upon the premises described in the mortgage accompanying said obligation: * * *. And provided further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in the maintenance of said insurance, or in payment, either of said principal sum at maturity, or of said interest or in production of said receipts for taxes and water rates within the time specified, a writ of fieri facias is properly issued upon the judgment obtained upon said obligation, or by virtue of this warrant, or a writ of scire facias is properly issued upon the accompanying indenture of mortgage, an attorney's commission for collection, viz., (5%) per cent., shall be payable, and shall be recovered in addition to all principal and interest then due, besides costs of suit. These are to desire and authorize you, or any of you, to appear for me, my heirs, executors or administrators, in the said court or...